§ SIR EARDLEY WILMOT, in rising to suggest—the Forms of the House preventing his moving—
That, in order to lighten the load of business which now weighs heavily on the High Court of Justice, and also with a view to public convenience, it is expedient to provide more facilities than at present exist for the trial of civil actions in the great provincial centres of England and Wales,said, that the matter was important, and that, as things were, it was impossible for the Courts to discharge their duties. From statistics which had been placed before him, it appeared that there had been a large increase in the number of actions in the High Court of Justice since the passing of the Judicature Acts, 1873 and 1875, and that there were now 2,739 actions on the papers waiting to be disposed of before the Long Vacation, but, without greater facilities being provided, it would be quite impossible that that could be done, or that they could be disposed of in a reasonable period of time after the Long Vacation. This involved suitors in much additional expense, and he would urge that additional facilities should be provided. He would call attention to a case which was set down for trial at Manchester on the 10th of last March. The trial could not be concluded in a day, and the Judge was obliged to go to Liverpool to open the Assizes in that town. Ten of the jurors volunteered to go there, but when the case was called, only nine appeared, and counsel declined to go on, and it 1543 had to be postponed. That was an instance in which great expense and delay were incurred, and it plainly showed that some alteration in the present system was absolutely required. Under all the circumstances he hoped his hon. and learned Friend the Attorney General would see the necessity of applying some remedy to this very great evil. Great complaints had been made, and much dissatisfaction had been expressed in memorials to the Lord Chancellor from the Liverpool Incorporated Law Society and the Liverpool Chamber of Commerce, and there was a strong feeling on the matter throughout the country. After quoting at length from these memorials, the hon. and learned Baronet went on to give some statistics showing the state of things at Manchester and at Liverpool. At the last Spring Assizes in Manchester there were 76 causes entered for trial, 39 of them Common Jury cases and 37 Special Jury eases, and only 10 days were allowed for their trial. Only 35 of them were tried, the remainder being referred, withdrawn, or otherwise disposed of. Parties were often obliged reluctantly to consent to have their case referred to arbitration on account simply of want of time to try it. The people of Liverpool and Manchester were perfectly justified in asking that further facilities should be given for the despatch of their legal business. The recommendations contained in the Report of the Judicature Commission of 1872 had been only partially carried out, but no attempt was made to carry out that portion of their recommendations which stated that there should be four sittings in Liverpool and Manchester each year, the duration of which should not be limited. Under the present management the dead-lock which now existed would increase considerably, and he would extend the jurisdiction of such Courts as the Passage Court at Liverpool and the Salford Court of Requests, and also enlarge the area of those Courts, so as to comprise a larger radius. He would also make the sittings for the despatch of civil business in the great provincial centres to be of longer duration than the limited period now given by the Assizes in those places, and in these days of rapid locomotion it would not be difficult to find Judges and counsel, who, by holding continuous sittings, would greatly lessen the expense and delay in the administration of justice, 1544 now so reasonably and universally complained of. This, he thought, would do away with a considerable amount of the present inconvenience. With regard to the business in London, the New Courts would not be ready for some time, and as complaints were made that the Judges could not find suitable places in which to sit, the suggestion that Serjeants' Inn might be utilized for this purpose deserved attention. After adverting to the recommendations made by the late Lord Brougham and by Lord Selborne for improving the mode of carrying on the civil and criminal business of the country, the hon. and learned Baronet said he agreed with the hon. and learned Member for Marylebone (Mr. Forsyth) in thinking that the cases of burglary and forgery which were now tried at Assizes should be tried at quarter sessions. As a Recorder of 20 years' experience, he thought that if this were done, and if coining and Post Office cases were also transferred to the quarter sessions, the work of the Judges at Assizes would be much relieved. This would also get rid of the injustice of keeping persons who might be innocent in prison for so long a period as often occurred now between committal and trial. The time had now come when the matter must be dealt with; and the present Government, which was really powerful enough, ought to take some steps to remedy this defect. The time allowed for civil causes at the Assizes was quite insufficient, and not unfrequently caused a scandal in the administration of justice. It was the interest alike of the Bench and the Bar to put an end to the present unsatisfactory state of things.
§ Notice taken, that 40 Members were not present; House counted, and 40 Members being found present,
§ MR. HERSCHELLsaid, it was a great mistake to suppose that the effect of the Judicature Act had been to create a great block of business in the Law Courts. He was prepared, on the contrary, confidently to assert that in the greater number of the departments of the Law, the state of things was now far more satisfactory than it had been at any time since he was called to the Bar. Three or four years ago, if in any trial a point of law was reserved, it was at least a year before it came on for decision. But what 1545 was the state of things now? There was not at that moment a single case waiting judgment upon points reserved in the Court of Queen's Bench. It was just the same in all other classes of cases; and there were none on the new list but cases that been set down since the Whitsuntide Recess. Appeals from the inferior Courts usually took six months, and perhaps a year before they could be heard. But what was the case now? There was not a single case of appeal of this kind down for argument which had not arisen within the last two months. Again, in the old Court of Appeal, after the decision of the first Court, months and months might elapse before a man could get his case decided in the Court of Appeal, and two or three years before it could be decided in the House of Lords. Now, however, he believed there would not be a case set down before April 1st standing for argument in the Court of Appeal, while he ventured to say that at the termination of the Session there would not be a dozen cases in the House of Lords for argument. Still the list of cases standing for trial by jury was longer than one would like to see it; but the evil was, he had no hesitation in saying, diminishing, and would be still further diminished when some further modifications and improvements, which he admitted were necessary, had been introduced into the system. In short, he felt convinced the system would work if it only got a fair trial, instead of the whole thing being thrown every year into a state of confusion. With respect to the Provinces, and especially the cases of Manchester and Liverpool, he had no wish to conceal that the state of things was by no means satisfactory. At the same time he thought it right to say that there was a class of cases which were entirely unfit to be tried by a jury, but there were litigants and their solicitors who would insist on those cases being entered for trial. Some of the cases alluded to by the hon. and learned Baronet (Sir Eardley Wilmot) were of that description, and ought to have been referred. In the beginning of the last sittings there were 900 cases for trial by jury in Middlesex, whilst at the beginning of the present sittings there were but 800 cases, showing that some progress had been made. Admitting to some extent the existence of the evil complained of, what was the remedy? 1546 One remedy was to give a much longer time to the Assizes. But that, no doubt, would bring attendant evils. He thought if the present system were fairly tried with a few modifications—such as a few more Judges sitting at Nisi Prius, and arrangements to this effect were being made—there would be comparatively little complaint in London. It was a mistake to treat great towns like Manchester and Liverpool, where there were so many causes to be tried, just as they treated any small town where the causes were few. But what appeared to him an adequate and easy remedy would be to send three instead of two Assize Judges. One Judge should take the criminal work, and attend to it himself. A second Judge should take the Common Jury cases, and the third Judge the Special Jury cases. Parties might then at once arrange their business, and instruct their counsel, and there would be no clashing of cases. There was a good deal to be said in favour of more frequent Assizes. There were at present three Assizes at Liverpool; but they had there a Court practically of unlimited jurisdiction which sat four times a-year, where the Judge was a lawyer and a gentleman of ability, and where pressing matters might be heard. Many advocated a fourth Assize, and the subject well deserved consideration. It was said reforms were objected to because they were against the interests of the Bar; but, in his opinion, the interests of the Bar, properly understood, were the interests of the country, and for himself he must say he would not object to any reform with reference to the interests of the Bar, except so far as the interests of the Bar and the suitors were identical. He believed, however, that it was not in the interest of the public that they should localize the administration of justice too much; and they must be careful not so to alter the existing system as to incur the danger of producing that result.
§ SIR GEORGE BOWYERsaid, the question raised by the hon. and learned Baronet (Sir Eardley Wilmot) was one of great importance. Trial by jury was one of the most valuable institutions of the country. Its principle was that questions of fact were to be determined on the belief of 12 men; but he must say that the principle of reference which had long existed in this country was a scandal to the administration of justice; 1547 and ought to be abolished. What was that system? A party gave a special retainer to his counsel; he got his witnesses together, who attended him at great expense to the Assize town; but after all the case was not tried because it was not convenient for the Judge to hear it, because he had to proceed to the next Assize town, or for some other reason. If the case was one that should be referred, there should be some process by which that should be known before the parties had incurred all the expense and trouble of bringing their counsel with special fees and witnesses to trial. After all, the case was referred, not to one of the Judges of the land, but to a barrister, perhaps, without much experience, who heard it day after day in London at an enormous expense. A system like that was an abuse and a scandal to the administration of justice, and it would be better if those cases were placed before men of experience and of ability, but those were the very men who had been retained in cases, and therefore were unable to sit either as Judges or arbitrators. A great difficulty had arisen from the Judicature Act. Pleading had been thrown aside; questions of fact and law were so mixed that the Judge had to pick out the issue. That was a great evil, and he did not know where it would end. It would not be worked out in our time, but it showed that some system lay ahead. The system of administration of justice at the Assizes must be changed. He had no doubt that the time was approaching when there must be a system of local Courts in the great centres of industry and manufactures, such as Liverpool and Manchester, and that more time must be given, in the shape of local Assizes, to decide the questions which arose in those centres.
§ Mn. RATHBONEsaid, that the improvements effected in the Courts in London had not extended to Lancashire in any degree, because the recommendations of the Judicature Commission had not been carried into effect. That Commission recommended that there should be at least four Commissions of Assize in Lancashire, and the present Lord Chancellor refused to sign the Report, because he did not consider that it provided sufficiently for the immense amount of work to be done. The way in which cases had been referred after all the expense to which suitors had gone 1548 was a downright scandal, and the number of references had certainly not diminished. On the contrary, it had increased. The public in Lancashire felt this system to be a real grievance, and they hoped the Government would take some measures to abate the nuisance.
§ MR. WHEELHOUSE, as representing the largest commercial district after Lancashire, desired to endorse what had been said on this subject by the hon. Gentleman opposite (Mr. Rathbone). Yorkshire had not felt the benefit of the improvements effected by the Judicature Act any more than Lancashire, and nothing that he knew had caused greater dissatisfaction than the state of things, now almost chronic, which prevailed over the North of England. These who came before Commissioners, as distinguished from Judges, were not satisfied, and could not be expected to be satisfied, with what was done. It was useless to expect that they could actually carry out the Judicature of the High Court of this country, unless they had more Judge power. If anyone, however eminent, not appointed a Judge, were nominated to act, some one would be dissatisfied. That dissatisfaction would be expressed, either with the judgment, with the summing up, or something else, and the case would almost certainly appear in the appeal list in London, where it was very difficult to prognosticate at what time it would be heard. That was a state of things which, in the interests of justice and of the reputation of the Bench, ought not, in his opinion, to be allowed to exist any longer. He would support any reasonable proposition that would afford facilities to the suitors.
§ MR. MORGAN LLOYDsaid, the effect of the proposal of the hon. and learned Baronet the Member for South Warwickshire (Sir Eardley Wilmot), to increase the jurisdiction of the County Courts, of the Recorder's Court, and the quarter sessions, and to establish a local Court for Liverpool and Manchester would be to undermine the existing Circuit system, and gradually to get rid of it altogether. The suggestion as to Liverpool and Manchester would involve the appointment of an extra Judge, and for his own part he protested against an increase of Judges for the sake of Lancashire at the expense of other parts of the country. Practically, the proposal 1549 was to do away gradually with the Circuits, and to establish local Courts on the French system—a change for which he could perceive no solid reason. He thought the Business of the country might be done without any material alteration of the Circuit system. The difficulties might, to a great extent, be overcome by an increase of the existing judicial force; but he thought that something might be gained also by a better arrangement of the Circuits and by grouping together some of the smaller counties for Assize purposes. Provision should also be made for the trial of cases in the district within which the cause of action arose, so that it might not be left to chance whether an action should be tried in one part of the country or in another. The principle of local venues should be adopted, and the place of trial should not be changed except for good cause. Such provisions would tend to spread the business over the whole country, and prevent the accumulation of business in London which had been found so detrimental to the suitors.
§ SIR HENRY JAMESfelt sure that it was very profitable to consider how far the whole system had been affected by recent changes. He was very hopeful as to their utility. No doubt, the fact that they were reforms which at the outset cast new burdens and new duties upon the Judges had caused seine little difficulty, but a great step had been taken and the reforms had been accepted by the Judges with a complete desire of giving effect to the intentions of the Legislature. Very great results had already been obtained, and the Appellate system of the House of Lords had worked most beneficially. Formerly a delay of two or three years before cases could be heard was not uncommon, but that disadvantage had been removed, and the interval of delay before the appeal was now not more than a few weeks. The system, he thought, was very satisfactory. Although these appeals had increased in number and importance, there was a satisfactory account of them, and the final Court of Appeal, the House of Lords, had been relieved from much of the burden cast upon it. A suitor could now have his case heard both in the intermediate Court of Appeal and in the House of Lords within a comparatively short period of time before Judges who were fully capable to deter- 1550 mine his case with great discrimination. Considering the short time these tribunals had been in existence, that result ought to be very satisfactory to the public. There might be some complaints yet that had a good foundation, but such complaints must inevitably arise when a new system was commenced. A good deal of inconvenience had arisen from the existing defective accommodation in the Courts, but, notwithstanding such drawbacks, considerable progress had been made in the different Courts; and there was reason for anticipating that when the changes which had been effected had had some further trial, the difficulties that had to be encountered would be dealt with as satisfactorily as cases had been dealt with in our Courts of Appeal. The principal difficulties were experienced in regard to the Chancery causes and the trials at Nisi Prius. It might be that we should have to consider whether it was not necessary that an addition should be made to our judicial Staff. If it should be necessary to appeal to the House, he was sure that, supported by public opinion in its determination, it would not grudge an addition to our judicial Staff. It would be a poor and weak economy in this great commercial country if there should not be found for suitors a sufficient judicial Staff to try cases. But much would depend on the Chancellor of the Exchequer. Some economy might be effected in our judicial arrangements. The four gentlemen who had been appointed Official Referees cost the country £6,800 a-year. It appeared from a Return in the Library that in 12 months they had tried 45 cases between them, and that one gentleman—to whom he did not wish to refer, for he was not going back to the question which was discussed last year as to the appointment of Official Referees—during 365 days had devoted himself to the purposes of his office for 80 hours. Allowing six hours for each day he sat for that purpose, that would make 13 days. The system of Official Referees was originally instituted in order that persons who had special knowledge—such as chemists and persons of that description—might sit as assessors and hear certain cases. That system had been tried for 12 months. The public did not choose to go before these assessors. They did not go before them 'unless they were compelled by a Judge, 1551 and the fact was the Judges sent them a little work to do. But what they wanted was more Judges. The Prisons Bill now being passed through Parliament would show that they required more judicial strength, and he thought some economy might be found in the direction of the £6,800 paid to these Official Referees, who between them had tried only 45 cases in 12 months. That sum would pay the expenses of clerks to do work in Chambers under the direction of a Vice Chancellor, and would also pay the salary of an additional Judge to try cases in Lancashire and other commercial centres. That increase in the judicial Staff would remedy an admitted evil, for the House had recognized the justice of bringing accused persons to trial as speedily as possible, instead of detaining them in gaol for several months until the Judges went on Circuit. Another direction in which they might look for some relief was the Privy Council. The Admiralty appeals had been taken from the Privy Council, and Ecclesiastical matters which used to go before it also to a great extent now went to the Court of Arches; and it being proved already that our Courts of Appeal were sufficient to meet the demands on them, he trusted that as the Members of the Judicial Committee passed away, the Primary Courts would receive such additional strength as they required, and that before long our judicial Staff would be able to meet all the necessities of the public.
THE ATTORNEY GENERALsaid, that as the subject had been so thoroughly discussed, he should not occupy the time of the House at any great length. He could not agree with the hon. Baronet the Member for Wexford (Sir George Bowyer) in his ecstatic admiration of the ancient system of pleading, nor in his sweeping condemnation of the Judicature Act. Indeed, he had always thought that the old system of pleading was an impediment to the administration of justice. It was a highly artificial system, no doubt, and it had some excellent characteristics, but it certainly did not secure the most expeditious administration of justice. With regard to the Judicature Act, he agreed with those hon. Members who thought that very great good had been effected by it. It had rendered our system of pleading more symmetrical, more harmonious, and more reasonable; and if no advantage 1552 had been secured by the Judicature Act beyond the great improvement it had introduced into our Appellate system, it would have done excellent service. But he believed that other important advantages had been secured by that Act—advantages which would be seen before long when the Act had had more time to work. He quite concurred with his hon. and learned Friend the Member for Taunton (Sir Henry James) that the Judges had earnestly and honestly endeavoured to carry out the provisions of that Act. It was very difficult all at once to get into working order an entirely new system or rule. As to the load of business which, as the hon. and learned Baronet who had brought forward that question (Sir Eardley Wilmot) stated, burdened the High Court of Justice, no doubt it was very considerable; but he thought there had been a good deal of exaggeration on the matter. With respect to the block of business which had occurred in the Nisi Prius cases and in the Chancery Division, the figures contained in the Returns on the subject were taken at the end of the Recess and when the Courts had not been sitting for a period; and from those figures he did not think they could come to the conclusion that the number of cases standing for decision in Banco was at all considerable. No doubt the number standing for decision in the Chancery Division was very considerable. But a remedy had now been applied, and the Government had in the course of the Session agreed to the appointment of an additional Judge (Mr. Justice Fry) for the disposal of those cases in Chancery. That Judge was a Judge of the greatest ability; his appointment had given the greatest satisfaction to the Profession and the public, and by his aid those arrears would, he believed, speedily disappear. The experiment had been made of appointing him at first without a Staff; but, of course, if it became essential that he should have a Staff, he must have one. As to what the hon. and learned. Member for Taunton had said about the Official Referees, no doubt the system of appointing them had not so far proved successful. It was generally thought when the Judicature Act was introduced by the late Government, that there ought to be some tribunal before whom, if necessary, the Judges should be able to send various points arising in 1553 the course of actions, which embraced more numerous questions than they formerly did. That system seemed to be approved, and Official Referees were appointed; but a Return which had been laid on the Table of the House showed that these gentlemen had not been overburdened with work. This, however, was no fault of the Referees themselves, but resulted from the fact that the suitors did not care to have their eases decided by them. At the time when it was proposed to appoint these Referees, considerable objection was raised to the scheme in the House; and it was afterwards found that the system was somewhat costly, and that it was intended to be made self-supporting, and the fees were somewhat heavy in consequence, and had created a considerable amount of dissatisfaction. The Treasury, however, had assented to lower fees being charged for the services of the Referees, and it was possible that they might in future meet with more approval, As to the block of legal business which existed in the large commercial centres, it arose from the delay which necessarily occurred in the disposal of Nisi Prius causes in the London Courts. If these causes could be cleared out of the way, it was obvious that more Judges would be available for the business which was in arrear in the country, and he saw no reason why this end should not be attained by allowing Judges to try such causes singly, as was done by the Vice Chancellors in the Equity Courts. He also thought time would be saved, to the extent of one-half, by the more extensive employment of shorthand writers in Nisi Prius causes, instead of compelling the Judges to take their own notes slowly and laboriously in long-hand. He could not agree with the observation of the hon. Gentleman the Member for Liverpool (Mr. Rathbone), that the advantages of the Judicature Act had not made themselves apparent in Manchester and Liverpool. It might be that in those places the trial of Nisi Prius causes was not facilitated; but it should not be forgotten that points of law were decided much quicker than formerly, new trials were more speedily obtained, and a more satisfactory and speedy appeal was brought about. What were the remedies which it was proposed to apply? Something had been said about Commissioners; but suitors expected to have 1554 their causes tried by the Superior Judges of the land, and they had a right to have them so tried. To his mind it was very unsatisfactory to have them tried by Commissioners. A suggestion had been referred to, that while the civil cases were left to the ordinary Judges, the criminal cases might be tried by Commissioners; but it seemed to him of great importance that the criminal business should be dealt with by the regular Judges, in so far as it came within their jurisdiction, and that there would be serious distrust felt if that was not done. The true remedy for the evil which existed, and which he owned was of considerable magnitude, particularly in Manchester and Liverpool, and perhaps other large places, was that which had been pointed to by his hon. and learned Friend the Member for Durham (Mr. Herschell). More Judges ought to go to those places—three, perhaps, instead of two—and if that was done he believed it would be a complete remedy for the evil complained of.
§ SIR HENRY JACKSONsaid, he wished to add his testimony to the satisfactory working on the whole of the Judicature Act. No doubt in working new machinery some hitches had occurred, but everybody, Judges, counsel, and solicitors, were becoming more at ease, and were setting to their new duties with a determination to secure the success of the Act. In the Chancery Division he could say of his own knowledge that much of the delay complained of had been caused by the novel introduction of Nisi Prius trials into that Court. But the main reason for these arrears was the great increase of litigation, and the probability was it would continue to increase. It was difficult to see how this could be met. Just in proportion as they gave greater facilities for hearing and settling suits, the number of causes would increase. In the Chancery Division that had been the case already, and he anticipated a continuation of that pressure, as long as all cases in that Division had to be heard in London. He did not mean that litigation was not expensive. On the contrary, the cost was too high, and, in his opinion, the evil which pressed on suitors was not so much that of delay as that of expense. To the Chancery Division witnesses were now brought from all parts of the Kingdom for the purpose 1555 of vivâ voce examination, and the expense of keeping them in London was a very serious matter. Sooner or later it would be found, he believed, that the country would not submit to it. No doubt in the other Divisions of the Court the same evil was more or less felt. The present system with its elaborate machinery and its highly-finished accuracy, with its refined pleadings and its numerous appeals, had approached to a logical perfection, and to those who could afford to resort to it secured a highly satisfactory result; but it could not, at the same time, be denied that it pressed very hardly on those who, being poor, could not either assert or defend their rights except at a cost out of all proportion to what was gained. At some time or other a remedy must be found —either by an extension, as suggested by the hon. and learned Member for South Warwickshire (Sir Eardley Wilmot), of the jurisdiction of the County Courts, or in some other way—for an evil which had increased, was increasing, and ought to be diminished. At present, however, public opinion was not ripe for the adoption of such a remedy.